June 15, 2015, marked the 800th anniversary of Magna Carta, (1) a
document whose foundational influence on the freedoms enjoyed under our
Anglo-American systems of government and jurisprudence cannot be
overstated.

The reason for such unalloyed praise is quite simple. Magna Carta
is the first English document that codified limitations on the arbitrary
power of government. Much like the United States' Constitution that
followed it 573 years later, Magna Carta imposes restrictions on
governmental action but demands nothing of the nation's citizens in
return. Contrast this, for example, with the admonitions of those Ten
Commandments that directly regulate the thoughts (2) and actions (3) of
the citizenry, or with Justinian I's Corpus Juris Civilis, which,
while providing certain individual protections, placed few, if any,
restraints upon governmental action.

Although universal obedience to the law was not unique to 13th
century England, (4) Magna Carta was the first codification of such a
principle, explicitly stating that all persons, (5) including for the
first time the king, (6) were subject to the law of the land. It is also
the first written statement of the right to due process and habeas
corpus. Magna Carta's Clauses 39 and 40 (7) state that:

39. No free-man shall be seized or imprisoned, or stripped of his
rights or possessions, or outlawed or exiled, or deprived of his
standing in any other way, nor will we proceed with force against him,
or send others to do so, except by the lawful judgement of his equals or
by the law of the land. 40. To no one will we sell, to no one deny or
delay right or justice. (8)

King Edward III signed the Liberty of Subject Act 139 years after
Runnymede, fixing the concepts of Clauses 39 and 40 into the common law
and, in updating the translation from Latin, gave us that vital
expression, "due process of the law." The statute, cited today
as 28 Edw. 3, states that: "No man of what estate or condition that
he be, shall be put out of land or tenement, nor taken, nor imprisoned,
nor disinherited, nor put to death, without being brought in answer by
due process of the law."

In stark contrast to its predecessors, (9) Magna Carta did not
arise from the noble intentions of an enlightened ruler, but was imposed
upon the government by the country's exasperated populace. A group
of rebellious barons, tired of King John's repeated demands for
scutage (10) and his inhumane treatment of prisoners, took up arms
against the cruel and petty ruler (11) under the banner of the
"Army of God." After taking London in April 1215, the baronial
army famously met John at Runnymede on June 15 and presented him with a
mediation agreement drafted by Stephen Langton, Archbishop of
Canterbury, (12) that promised to return London to the Crown in exchange
for the king's signature on and adherence to the agreement.
Although the rebel movement was soon extinguished, the document itself
was not entirely forgotten and was revived several times during the 13th
century and beyond.

Most of Magna Carta's clauses have been repealed or rendered
moot with the passage of time, (13) but British law still retains the
three that grant freedom of the English church, (14) its capital city,
(15) and its citizenry. (16) Likewise, the freedoms guaranteed by the
U.S. Constitution rely in part on a modified version of Clause 1, (17)
and on Clauses 39 and 40. These are incorporated into the body of the
Constitution itself (18) and its amendments, (19) and are among the most
fundamental of our societal principles.

We live in a nation "with solid pavement under [our] feet,
surrounded by kind neighbors," (20) where citizens are rarely if
ever "disappeared" and "dissidents" are those across
the proverbial aisle. In such a society, it is difficult, if not
impossible, to appreciate the profound and far-reaching consequences of
the rights that have come down to us from the field at Runnymede. Chief
among those rights are the prohibition against the arbitrary taking of
life, liberty, or property, and the prohibition against arbitrary
incarceration, known to us respectively as due process and habeas
corpus.

The Due Process Clause states that "No person shall ... be
deprived of life, liberty, or property, without due process of
law." (21) It is contained in the Fifth Amendment to the
Constitution as a part of the Bill of Rights and "like its forebear
in the Magna Carta ... was intended to secure the individual from the
arbitrary exercise of the powers of government." (22) In crafting
the Due Process Clause, the framers were strongly influenced by Magna
Carta's Clause 39, so much so that Justice Story noted that the
clause "is but an enlargement of the language of magna
charta." (23) Similarly, Judge Dillon remarked in his commentary on
the constitutional guaranties of the Fifth and 14th amendments that
"[t]his was not new language, or language of uncertain meaning. It
was taken purposely from Magna Carta. It was language [that] had stood
for more than five centuries as the classic expression and as the
recognized bulwark of the ancient and inherited rights of Englishmen to
be secure in their personal liberty and in their possessions." (24)

Notwithstanding their reverence for the original, the framers
reduced Clause 39's longer phrasing from the cumbersome
"seized or imprisoned, or stripped of his rights or possessions, or
outlawed or exiled, or deprived of his standing in any other way, nor
will we proceed with force against him, or send others to do so,"
to the much more memorable "deprived of life, liberty, or
property." It is a testament to their genius that the framers'
more economical use of language did nothing to narrow the reach of the
protections thus afforded.

Due process has been described and defined numerous times as the
right of all people to be treated in accordance with the law of the land
or, more matter-of-factly, as "a course of legal proceedings
according to those rules and principles which have been established by
our jurisprudence for the protection and enforcement of private
rights." (25) In a more inspired vein, Justice Frankfurter noted in
his dissent to Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Frankfurter,
J. dissenting), that "[i]t is now the settled doctrine of this
Court that the Due Process Clause embodies a system of rights based on
moral principles so deeply imbedded in the traditions and feelings of
our people as to be deemed fundamental to a civilized society."
Just in case we didn't get the point, Justice Frankfurter added,
"Due Process is that which comports with the deepest notions of
what is fair and right and just." (26) Likewise cognizant of the
primacy of the right to due process, Justice Cardozo wrote, concerning
the due process requirement imposed on the states by the 14th Amendment,
that due process is violated if a practice "offends some principle
of justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental." (27) The U.S. Supreme Court has heard
over 250 due process cases and, despite differences among the justices
as to the breadth of its application, (28) most would agree with Justice
Stevens' statement that while no legal document could ever be the
source of our basic freedoms, "[t]he Due Process Clause ... stands
as one of[the] foundational guarantors in our law." (29)

A citizen possesses only life, liberty, and property. The
Constitution protects these elements from arbitrary confiscation, but
ironically the threat of such confiscation is also the sole method by
which a government may enforce the laws. When set in such a context, the
importance--and genius --of due process becomes clear. Clause 39 and its
descendant, the Due Process Clause, recognize that laws and their
enforcement are essential to a well-ordered society and, most
importantly, that a society can be well-ordered only if those laws apply
with equal force to the government and the governed. The right to due
process of law may, therefore, be more important and far-reaching than
even the justices have expressed, for it is alone among the enumerated
rights to stipulate the foundation upon which all our other rights are
assured. This foundation, this concept of "due process,"
embodies the principle that whatever a government does to a citizen, it
can only do in accordance with a law permitting it to do so and in
accordance with the law of the land. Accordingly, governmental
infringement upon a person's life, liberty, or property is only
possible if and when permitted by the people and their laws and may only
be exercised as set forth in those laws.

The Due Process Clause makes it clear that the king is below the
law, and its breadth and clarity render it among the most sweeping
limitations ever placed on the power of government.

The second of the fundamental guarantees to come down to us from
Magna Carta is the writ of habeas corpus. Described as "the most
celebrated writ in English law" (30) and as "that great
bulwark of our constitution," (31) the habeas corpus act is one of
the most important defenses available against illegal and secretive
detention and all that it implies. Upon petition by any prisoner, (32) a
judge or court may issue a writ of habeas corpus compelling a jailer to
produce the prisoner and prove that the incarceration is legal. Habeas
corpus, thus, provides the judiciary with a powerful tool against an
excessive concentration of power in the executive branch and reinforces
the due process clause by providing a remedy when a failure of due
process has led to arbitrary or improper incarceration.

Unlike the Due Process Clause, the habeas corpus language is
incorporated into the body of U.S. Const. art. I, [section]9, cl. 2, and
states that, "[t]he privilege of the writ of habeas corpus shall
not be suspended, unless when in cases of rebellion or invasion the
public safety may require it." Although habeas corpus is widely
viewed as a right, it is in fact a revocable privilege, and may be
suspended by the president with or without the approval of Congress.
Habeas corpus suspension has been extremely rare, (33) and is only
deemed constitutional if such suspension provides a constitutionally
adequate alternative. Most recently, the Military Commissions Act 2006
amended 28 U.S.C. [section]2241 (34) by replacing subsection (e) with a
clause that removed jurisdiction for courts "to hear or consider an
application for a writ of habeas corpus filed by or on behalf of"
alien enemy combatants detained by the United States. Within two years,
however, a divided Supreme Court reversed in Boumediene v. Bush, 553
U.S. 723 (2008), on a finding that the amended statute failed to provide
a constitutionally adequate alternative. In its opinion, the Court
opened with the observation that "protection for the privilege of
habeas corpus was one of the few safeguards of liberty specified in a
Constitution that, at the outset, had no Bill of Rights," (35) and
that "the writ had a centrality that must inform proper
interpretation of the Suspension Clause," (36) noting also that
freedom from arbitrary imprisonment was one of the basic rights
established by Magna Carta. The opinion closed by holding that
"[t]he laws and Constitution are designed to survive, and remain in
force, in extraordinary times. Liberty and security can be reconciled;
and in our system they are reconciled within the framework of the law.
The framers decided that habeas corpus, a right of first importance,
must be a part of that framework, a part of that law." (37)

In addition to the ever-present possibility of suspension, the writ
of habeas corpus is also subject to fluctuating interpretation of its
reach. Throughout most of the 19th century, habeas was available only to
attack a conviction on the ground that the trial court lacked
jurisdiction, but in 1880, the Supreme Court permitted the use of habeas
to attack a conviction based on an unconstitutional statute. (38) In
1873, the Court permitted a habeas claimant to challenge a sentence in
excess of the statutory limitations, (39) and in 1923, overturned a
conviction resulting from a mob-controlled trial. (40) Finally, in Brown
v. Allen, 344 U.S. 443 (1953), the Court greatly expanded habeas
application, holding that "neither state court determinations with
respect to pure law or matters of law application were binding on
federal habeas courts." (41) Expansion continued with the 1963 case
of Fay v. Noia, 372 U.S. 391 (1963), in which the Court held that a
failure to raise an issue during trial did not preclude a subsequent
habeas claim, concluding that "a forfeiture of remedies does not
legitimize the unconstitutional conduct by which ... a conviction was
procured." (42)

This expansion was short-lived. Ten years later, a differently
constituted Court held that the failure to raise unconstitutional
conduct at trial constituted a waiver of the right to raise that
objection through a post-conviction writ of habeas corpus. (43) In 1992,
in Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992), the Court held that a
habeas petitioner must show good reason for failing to present evidence
at trial and actual prejudice as a result of that failure, and two years
later, it held that newly discovered evidence alone does not entitle a
claimant to federal habeas relief. (44) More recently, Congress imposed
further limitations with the passage of the Antiterrorism and Effective
Death Penalty Act of 1996, whose restrictions included a one-year
deadline to file a petition and far greater deference to state court
decisions. It is arguable that the growth in these restrictions
represents a reaction to the increasing use of the writ as a systematic
last-ditch appeal of all convictions, whether state or federal. Such
usage is completely contrary to the use of the writ in its country of
origin, where "it is no longer of great practical significance as
there are today very few habeas corpus applications," although
"it still represents the fundamental principle that unlawful
detention can be challenged by immediate access to a judge--even by
telephone in the middle of the night." (45)

Restrictions and narrowing notwithstanding, 800 years after John
and the barons met, the writ of habeas corpus and its counterpart, the
Due Process Clause, continue to assure that our government remains one
of circumscribed and limited powers in general accord with deeply held
and fundamental societal principles. It is impossible to know whether
the Runnymede barons realized the import of their articles 39 and 40,
hidden as they were among 61 more prosaic articles, but their brilliance
in exacting these rights from the king has provided the basis for
personal liberties for eight centuries, to the point where they are now
internationally recognized (46) and, for all intents and purposes,
axiomatic.

(1) Magna Carta was written in Latin. The English language
translation referred to here is available from the British Library,
http://www.bl.uk/magna-carta/articles/ magna-carta-english-translation;
Bryan A. Garner, A Dictionary of Modern Legal Usage 541 (2001)
("Magna Carta does not take a definite article.").

(4) Adam of Bremen wrote in 1080 that Icelanders have no king
except the law. Margaret Clunies Ross, Old Icelandic Literature and
Society 184 (2000); see also Thomas J. McSweeney, Writing Fiction as
Law: The Story in Gragas (May 14, 2014), available at
http://web.law.columbia.
edu/sites/default/files/microsites/gendersexuality/mcsweeney.gragas.5.14.14.docx.

(5) The original 1215 version of Magna Carta referred to the rights
of a "freeman"; the 1354 statute removed the word
"free-man," and replaced it with "No man of what estate
or condition that he be," a generous expansion that included
freemen, villeins, bordars, and cottars. The term "estate"
referred to the three estates of the realm: the clergy, the nobility,
and commoners.

(6) F. Pollock & F. Maitland, The History of English Law before
the Time of Edward I 184 (2d ed. 1898), available at http://
lf-oll.s3.amazonaws.com/titles/2313/Pollock_1541-01_LFeBk.pdf
("[Magna Carta] means this, that the king is and shall be below the
law.").

(7) The numbering is a modern addition. The original was written as
a single, unbroken text.

(8) These two clauses were combined into a single clause in Magna
Carta's 1225 revision.

(9) See, e.g., David Crowther, The Charter of Liberties of Henry
II, 1154, Documents in English History (Oct. 27, 2012), available at
http://historyofengland.typepad. com/documents_in_english_hist/2012/10/
the-charter-of-liberties-of-henry-ii-1154. html ("I have granted,
restored, and by my present charter confirmed to God and the holy church
and to all earls, barons and all my men, the concessions, gifts,
liberties and free customs which king Henry my grandfather gave and
granted to them.... Likewise all the evil customs which he abolished and
gave up, I give up and allow to be abolished on behalf of myself and of
my heirs.").

(10) Black's Law Dictionary 1348 (6th ed. 1991). In feudal
law, a tax or contribution raised by those who held lands by
knight's service, toward furnishing the king's army.

(11) Ralph V. Turner, King John: England's Evil King? (1994).

(12) Elemer Hantos, The Magna Carta of the English and of the
Hungarian Constitution 36 (1904). Authorship uncertain, but included the
archbishop and probably William, Earl of Pembroke.

(13) The National Archives, Magna Carta,
http://www.legislation.gov.uk/aep/Edw1cc1929/25/9. None of Magna
Carta's clauses was repealed until 614 years later when, in 1829,
Clause 26 was repealed by the acts 9 Geo. 4 c. 31 [section]1 and 10 Geo.
4 c. 34 [section]1. The passage of time and growth of the country
rendered clauses, such as 23 and 33 moot long before they were
eventually repealed: "(23) No town or person shall be forced to
build bridges over rivers except those with an ancient obligation to do
so; (33) All fish-weirs shall be removed from the Thames, the Medway,
and throughout the whole of England, except on the sea coast."
Clause 23 was repealed by Statute Law (Repeals) Act 1969 (c. 52), Sch.
Pt. I, and Clause 33 was repealed by Statute Law Revision Act 1863 (c.
125) and Statute Law (Ireland) Revision Act 1872 (c. 98). Id. Insofar as
Clauses 49-53 and 55-59 were temporary measures, they were omitted from
the 1225 edition of Magna Carta and from all later editions. See, e.g.,
Clauses 51 and 58: "(51) As soon as peace is restored, we will
remove from the kingdom all the foreign knights, bowmen, their
attendants, and the mercenaries that have come to it, to its harm, with
horses and arms; (58) We will at once return the son of Llywelyn, all
Welsh hostages, and the charters delivered to us as security for the
peace."

(14) Magna Carta, cl. 1, which states in part "that the
English Church shall be free, and shall have her whole rights and her
liberties inviolable." In United Kingdom law as 1297 Ch. 9 25 Edw.
1 cc 1 9 29 (I), available at http://www.legislation.gov.uk/
aep/Edw1cc1929/25/9/contents.

(15) Magna Carta, cl. 13, stating in part that, "[t]he city of
London shall enjoy all its ancient liberties and free customs, both by
land and by water." In United Kingdom law as 1297 Ch. 9 25 Edw. 1
cc 1 9 29 (IX), available at http://www.legislation.gov.uk/
aep/Edw1cc1929/25/9/contents.

(17) Granting freedom to the English church and stating that it
shall retain its rights undiminished and its liberties unimpaired in
perpetuity. This is also among the first known references to the
"ecclesia Anglicana," the English church, itself still a
branch of the universal church based in Rome. William Sharp McKechnie,
Magna Carta: A Commentary on the Great Charter of King John, with an
Historical Introduction 192 (1914), available at
http://oll.libertyfund.org/titles/338.

(18) U.S. Const. art. I, [section]9, cl. 2 ("The privilege of
the writ of habeas corpus shall not be suspended, unless when in cases
of rebellion or invasion the public safety may require it.").

(19) U.S. Const. amend. V, [section]4 ("No person shall ... be
deprived of life, liberty, or property, without due process of
law...."); U.S. Const. amend. XIV, [section]1, cl. 3 ("[N]or
shall any State deprive any person of life, liberty, or property,
without due process of law....").

(20) Joseph Conrad, Heart of Darkness, available at
https://www.gutenberg.org/ files/219/219-h/219-h.htm (reflecting on the
difficulty of understanding what the absence of law and order looks like
for those living in a civilized society).

(21) U.S. Const. amend. V, [section]4.

(22) Daniels v. Williams, 474 U.S. 327, 331 (1986).

(23) Joseph L. Story, Commentaries on the Constitution of the
United States [section]1783 (1833), available at http://lonang.com/
library/reference/story-commentaries-usconstitution/sto-338/.

(24) John F. Dillon, Laws and Jurisprudence of England and America
208 (1894), available at https://archive.org/stream/
lawsjurisprudenc00dilluoft/lawsjurisprudenc00dilluoft_djvu.txt.

(25) Pennoyer v. Neff, 95 U.S. 714, 715 (1878).

(26) Solesbee, 339 U.S. at 16.

(27) Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

(28) Primarily regarding substantive due process, which Justice
Scalia refers to as "judicial usurpation." See, e.g., Chicago
v. Morales, 527 U.S. 41, 85 (1999), in which Scalia, J. observed in
dissent that, "[t]he entire practice of using the Due Process
Clause to add judicially favored rights to the limitations upon
democracy set forth in the Bill of Rights (usually under the rubric of
so-called 'substantive due process') is in my view judicial
usurpation."

(29) McDonald v. Chicago, 561 U.S. 742, 863 (2010) (Stevens, J.
dissenting); see also Meachum v. Fano, 427 U.S. 215, 230 (1976)
(Stevens, J. dissenting), observing that, "I had thought it
self-evident that all men were endowed by their Creator with liberty as
one of the cardinal unalienable rights. It is that basic freedom which
the Due Process Clause protects, rather than the particular rights or
privileges conferred by specific laws or regulations."

(30) 3 William Blackstone, Commentaries [section]129.

(31) 4 William Blackstone, Commentaries [section]431.

(32) Habeas Corpus is codified at 28 U.S.C. [section]2241 (2012).
The federal judiciary has made a downloadable Petition for a Writ of
Habeas Corpus Under 28 U.S.C. [section]2241, Form AO 242, available at
http://www. uscourts.gov/uscourts/FormsAndFees/ Forms/AO242.pdf.

(33) The only time the writ was suspended prior to enactment of the
Military Com missions Act 2006 was during the Civil War. On April 27,
1861, President Lincoln first suspended the writ of habeas corpus at or
near any military line between Philadelphia and Washington, followed on
May 10 by an order applicable to part of the Florida coast and on July 2
by an order authorizing suspension between Philadelphia and New York. On
September 24, 1862, Lincoln issued a proclamation imposing martial law
for the duration of the war and stating that, "the writ of habeas
corpus is suspended in respect to all persons arrested or imprisoned in
any fort, camp, arsenal, military prison, or other place of confinement
by any military authority or by the sentence of any court martial or
military commission." It was not until March 3, 1863, that Congress
passed the Suspension Act, providing congressional support to
Lincoln's actions. See James A. Dueholm, Lincoln's Suspension
of the Writ of Habeas Corpus, J. Abraham Lincoln Ass'n 48-51
(Summer 2008), available at http://quod.lib.umich.edu/
cgi/p/pod/dod-idx/lincoln-s-suspensionof-the-writ-of-habeas-corpus.pdf?c=jala;i dno=2629860.0029.205.

(43) Davis v. United States, 411 U.S. 233 (1973); see also Swain v.
Pressley, 430 U.S. 372, 381 (1977) ("[T]he substitution of a
collateral remedy which is neither inadequate nor ineffective to test
the legality of a person's detention does not constitute a
suspension of the writ of habeas corpus.").

(46) Contained within the concept of jus cogens, described as
"rules of conduct which proscribe certain attacks on a number of
particularly cherished goods of the international community," the
referenced "goods" being democracy and the rule of law. See
Christian Tomuschat, The Fundamental Rules of the International Legal
Order: Jus Cogens and Obligations Erga Omnes 430 (2006).

Illustration by Barbara Kelley

Leonard W. Klingen is a board certified construction law attorney
and partner at The Barthet Firm in Miami, where he focuses on complex
construction claims and related litigation.

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